Sam’s Club Dodges Freshness Guarantee Class Action Lawsuit

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A federal judge says a claim against Sam’s Club under a South Carolina consumer protection law can’t continue as a class action lawsuit.

U.S. District Judge Bruce Howe Hendricks dismissed plaintiff Myriam Fejzulai’s claim under the South Carolina Unfair Trade Practices Act “to the extent it is brought in a representative capacity.”

Fejzulai may continue to bring her SCUTPA claim against Sam’s Club, but not as a representative of her proposed subclass of South Carolina Class Members.

Fejzulai filed this Sam’s Club class action lawsuit in September 2014.

She initially alleged a breach of contract claim, saying Sam’s Club failed to honor the terms of its own membership agreement that provide for a refund of 200 percent of the purchase price of certain fresh food items, or a 100 percent refund plus replacement of the item.

Fejzulai added claims for injunctive and declaratory relief under SCUTPA in her second amended complaint.

Having proposed a nationwide Class for her breach of contract claim, she also proposed to pursue a claim under SCUTPA on behalf of a subclass of Sam’s Club members in South Carolina.

In his current order granting dismissal, Judge Hendricks noted that as various other courts have held, SCUTPA expressly prohibits plaintiffs from bringing claims as a class action lawsuit.

SCUTPA’s language says that plaintiffs “may bring an action individually, but not in a representative capacity,” the judge said.

Fejzulai argued that under the U.S. Supreme Court’s decision in Shady Grove v. Allstate, the federal court rule that allows plaintiffs to bring class action lawsuits supersedes SCUTPA’s prohibition on such claims.

Judge Hendricks’ application of Shady Grove did not reach the same conclusion.

He held that SCUTPA’s prohibition on class actions is inseparable from the consumer rights contained in the statute – essentially, that the South Carolina legislature never meant to create a right to bring a class action under SCUTPA.

The state legislature deliberately defined consumers’ SCUTPA rights in a way that limits their procedural redress to individual claims, the judge said. Allowing a federal court rule to overwrite that definition would displace the state’s effort to define a consumer right.

In her original Sam’s Club class action lawsuit, Fejzulai claims that Sam’s Club did not live up to the terms in its membership agreement that provide for a 200 percent refund when members return fresh meat, bakery and produce items.

She claims that in eight years as a Sam’s Club member, she has returned a significant number of such items but until May 2014 was never offered more than the purchase price or a replacement item. She alleged Sam’s Club has acted similarly towards “many thousands, if not millions” of its more than 47 million members.

The plaintiff is represented by attorneys William D. Herlong of The Herlong Law Firm and D. Charles Dukes II, Chris Moore, Terry E. Richardson Jr. and Christopher Tuck of Richardson Patrick Westbrook & Brickman LLC.

The Sam’s Club Refund Guarantee Class Action Lawsuit is Fejzulai, et al. v. Sam’s West Inc., et al., Case No. 6:14-3601-BHH, in the U.S. District Court for the District of South Carolina.

UPDATE: On Nov. 9, 2017, a settlement was reached in a class action lawsuit alleging Sam’s Club failed to live up to its freshness guarantee it promised club members, under which it would provide a 200 percent refund on returned fresh goods, or a full refund and replacement of the returned item. A federal judge granted preliminarily approval to the Sam’s Club class action settlement, which could be worth up to $6 million.

UPDATE 2: January 2018, the Sam’s Club freshness guarantee class action settlement is now open. Click here to file a claim.

UPDATE 3: On Aug. 16, 2019, Top Class Actions viewers started receiving checks in the mail from the Sam’s Club freshness guarantee class action settlement worth $136.20! Congratulations to everyone who filed a valid claim and got PAID!